I am a big fan of Brownstoner and the community he has created on his blog, and usually I am in tune with his thinking on issues of development, design and so on. Today, though, he has staked out a position on the question of eminent domain that is, quite simply, off base. Writing about the City’s negotiations for property in the Bushwick Inlet area for a future city park, Brownstoner takes the position that eminent domain is wrong. Period. I’ll admit that I am not very close to the Atlantic Yards imbroglio, but I think even the opponents of that project have staked out a more nuanced position against eminent domain abuse, not eminent domain per se. With regard to the Bushwick Inlet and eminent domain, Brownstoner is wrong on both the specifics and the larger philosophical/consitutional points. Here’s why.

On the specifics of Bushwick Inlet, Brownstoner was responding to the same issue (though via a different article) I cited a couple of days back. There, attorneys for some of the owner’s were saying that the City was underpaying them for their property, and citing market rates of $100 to $200 per buildable square foot.1 All well and good, but as I pointed out before, these properties are zoned for park use. Unless you are building a park, a price per buildable square foot is meaningless. Yes, there are grandfathered uses on these properties, but they are manufacturing uses (heavy manufacturing uses), that do not command hundreds of dollars per buildable square foot. Basically, there is no FAR here – the attorney’s are simply trying to run up the tab at the taxpayers expense.

So even if the market rate was $200 per buildable square foot, $200 x 0 is still 0. Which is not to say that the property is worthless, or that the owners should get nothing (or even get shafted for the public good). But the property is zoned for park use, and grandfathered as heavy industrial use. The owners should be compensated on that basis, and not expect a windfall. Is it fair that owners to the north and south got a windfall from the rezoning? Maybe not, but that windfall (or lack thereof) was the result of a multi-year rezoning that went through a massive environmental impact study, years of community review and approvals from the Borough President, City Planning Commission, the City Council and the Mayor.2

There is also the issue of cleanup – both the CitiStorage site and the Bayside Fuel Oil site are heavily contaminated, and will require millions of dollars of remediation. So even if there is an as-of-right residential use, the brownfield costs on these properties are so high as to vastly diminish the market price per buildable square foot. To my way of thinking, CitiStorage, to take an example, should be compensated at market rates for the cost of their (highly contaminated park) land and made whole for the cost of relocating their business. But we should not pretend that they have some right to compensation on the basis of a residential use, when no such use exists.

What about eminent domain in general – isn’t that a “bad thing”? The Fifth Amendment of the Constitution has a clause that prohibits the government from taking a person’s property without just compensation (“nor shall private property be taken for public use, without just compensation“). The Fifth Amendment does not prohibit takings, only undue takings without compensation3. The Constitution, and subsequent Supreme Court interpretations, have recognized that some takings are in the public interest.

Some takings do not even require compensation – the public benefit in regulatory takings is deemed so great that the value to the many is found to outweigh any detriment to the few. These takings, which I suspect are near and dear to Brownstoner’s heart, fall under this category. Zoning, for one, greatly limits the use to which an owner can put his or her property. Because of zoning (a 20th Century construct not envisioned by the framers), I do not have an inalienable right to put my horse rendering factory next to your McMansion. I also do not have an inalienable right to build an 80-story tower next to that same three-story McMansion. In the case of zoning, the Constitution and the Supreme Court have recognized a public benefit in limiting what an owner can do with his or her property.

Likewise, historic designations greatly limit the ability of a property owner to alter his or her property. Again, the Supreme Court has recognized that there is a public good here – the community benefit is great enough to justify the real harm to individual property rights inherent in the regulatory action. (In New York City, this not only results in restrictions to what one can do with their property, it also results in the only meaningful design review for new construction and alterations.)

Eminent domain is obviously different from zoning or historic designation. In the latter, the state is taking a part of the property owner’s rights; in the former, the state is taking everything. The Constitution has an answer for that – just compensation. Assuming that there is a public use, the state has the right to take your property if the state provides just compensation. Now there are two fundamental questions here – what is a public use, and what is just compensation? Unfortunately, in the now-infamous Kelo case4, the Supreme Court has vastly expanded the notion of public use – essentially substituting “public benefit” for “public use”. It is no longer a park or an overpass; public use can now be the increased tax revenues that would result from a private entity obtaining a property and introducing a new, more intensive (and higher tax yielding) use. Essentially, the government now has free rein to acquire private property on behalf of other private entities, with only a tangential public use.

Still, even assuming a public use (under the broad or narrow definition), the second question is the issue of just compensation. That is a question that is usually decided by the courts, in this case, weighing (hopefully) all of the issues I discussed above. In the case of the Bushwick Inlet, I’m sure that the City’s opening position is a low one; clearly, the owners’ opening position is unjustifiably high. In the end, the legal process will arrive at a fair (though not necessarily fair market) price.

I suspect (and I certainly hope) that Brownstoner’s positions on eminent domain and the Bushwick Inlet Park are not as dogmatic as they comes across in his post on the subject. Unless you are truly dogmatic and far to the right on the issue, it is hard to argue that there is not a public purpose to some use of eminent domain. The phrase has taken on an ill connotation as the result of many abuses – dating back to Robert Moses and not helped by recent examples such as Kelo and, yes, Atlantic Yards – but the concept of eminent domain is still valid, when properly applied.

1. The article also discusses the Monitor Museum, which is an entirely different issue. There, the Museum is challenging the City to stay on the plot of land that was donated to it (a piece of land that, I believe, was not part of the Continental Iron Works, where the Monitor ironclad was built). I will admit that I am not fully up on the issue, but the Museum is challenging to fight relocation, not the value of the compensation. Hopefully, there will be an agreement reached that will give the community the park it deserves and the Museum the site to which it is entitled.↩

2. And it should be remembered that the creation of this parkland was one of the major public benefits promised as part of the rezoning (together with affordable housing). On a per capita basis, North Brooklyn has far less parkland than the city average, and the addition of tens of thousands of new residential units will only make that worse. Even with the addition of this park, the state park, the waterfront esplanade and the parks at Dupont Street and Manhattan Avenue, we will have less parks and open space than the average New Yorker (by GWAPP’s estimate (warning! – pdf), 1/3 the citywide average on a square foot basis).↩

3.The Fifth Amendment only applied to the Federal government; prior to the Fourteenth Amendment, state governments were free to seize property via eminent domain without compensation.↩

4. This case was based on a challenge by private property owners to the City of New London acquiring property on behalf of private developers through eminent domain. The claimed that the acquisition promised to increase the use of the property and generate greater tax revenues. The Supreme Court, led by the liberal wing, supported the City’s taking of the property through eminent domain.↩

Good news on the housing shortage front: Crain’s New York Business reported yesterday NYC is on pace to issue permits for 34,000 new housing units this year. That would be the highest number of permits since the early 1960s (the last high was 33,084 in 1972). The vast majority of those will be in Brooklyn (permits up 13% over last year) Queens (18% increase); permits have declined in Manhattan, the Bronx and Staten Island.

One reason for the increase in permits is the expiration of generous 421-a tax abatements. In most of Brooklyn and all of Queens, projects that have their foundations vested by 30 June 2008 will qualify for abatements without needing to construct 20% on-site affordable housing. If you’re not vested by then, you will need to construct the affordable housing in order to get the abatement.

In related news, Curbed reported on Monday that Quadriad has been issued permits to pour a foundation for an as-of-right five-story project on North 3rd Street between Bedford and Berry. Because Quadriad wants to build affordable housing, it just doesn’t want to do it using any of the programs that are in place for building affordable housing.

As we predicted, Quadriad is back.

Henry Wollman of Quadriad made a brief informational presentation to Community Board 1 tonight. Mr. Wollman professed his fondness for the board, and stated that the as-of-right project is being permitted now and will start construction “next week”. That is the five-story project that requires no rezoning and no community review.

Mr. Wollman also said that they will be filing an application “next week” for their “New Strategy” proposal. That is the 22-story project that requires a rezoning and community review. The “New Strategy” project promises 30% affordable housing in exchange for a 165% density bonus (by contrast, the as-of-right project could provide 20% affordable housing and get a 30% density bonus – but Quadriad isn’t offering that – its their bonus or no affordable housing).

Mr. Wollman also mentioned other community benefits that he regretted weren’t discussed last summer – benefits such as “community retail” and “community employment”. Presumably, these community benefits were discussed in detail in the many briefing books issued by Quadriad over the past few months.

No word on when Quadriad’s rezoning application will reach the Community Board for an actual hearing.

What’s left of the building, at least. The demolition fence is up at 227 Grand Street, as seen above. What’s interesting about this site is not that it will be (yet another) finger building, nor that it will be (yet another) Karl Fisher joint. What’s worth noting here is the building’s history, dating back to the early days of Williamsburgh.

J. C. Gandar was a civic and literary leader of early Williamsburgh. His bookstore (pictured above) was located at the corner of Grand and Fifth Streets1 (Fifth Street is now Driggs Avenue). The building, which probably dates to the 1840s or early 1850s, is distinguished by its curved front – about the only identifying feature left on the building (see below). W. H. Gandar sold the property on “Grand st, n e corner Fifth” in 1874. The building survived in its original form into the 1950s – at which point it was home to Whalen Brothers’ clothing store. In the 1940s, it is pictured as three stories tall, with a one-story extension along Driggs (where the arched openings are now). So it is relatively recently that the building was cut down to one story. Still, the curved front remains – for a short while longer.

1. The address on the advertisement above (156 Grand Street) reflects the original Grand Street numbering system, which had the even numbered buildings on the north side of the street. Other versions of this print add the street names on the side of the building: Fifth Street is on the left facade and Grand Street is on the right.↩

Mayor Bloomberg, looking for answers in Greenpoint.

So the Mayor came to Greenpoint, and Greenpoint (mostly) behaved itself.

The show was organized by North Brooklyn Development Corp., and was not open to general questions. As it was, fewer than half the planned questions were put to the Mayor. (As predicted, there were plenty of soap boxes mounted, and most questions went on too long (mine included) but NBDC did a good job of keeping things moving and people (mostly) on message.)

It may have been overlooked, but if there was a single newsworthy item, it was that City Planning has finally completed its contextual zoning study for Greenpoint & Williamsburg. This is something the Community Board has been working with DCP on for over a year now, so we are anxious to see the details. DCP Commissioner Amanda Burden did announce that all of Greenpoint would be getting contextual zoning (as recommended by the Community Board). That means no more finger buildings, no more community facility bonuses, and more opportunities for inclusionary (affordable) housing.

Elsewhere, the DOB discussion focused entirely on the issue of construction safety, as illustrated by the case of one homeowner whose foundation was undermined two years ago and is still homeless. DOB Commissioner Patricia Lancaster had, frankly, the usual response – we have more inspectors, new special enforcement teams, the ability to hold contractors criminally liable, blah, blah, blah. Bloomberg did step forward and promised to get involved in this particular case “next week”1.

Unfortunately, none of the larger issues revolving around DOB’s lack of enforcement were even raised – lax zoning enforcement, enforcement of stop work orders, issuance of after-hours variances, trucks running into neighboring buildings while pouring concrete on a job with a stop work order in effect, and so on. But the highlight of this segment was the resounding hiss elicited by the mention of everyone’s favorite architect.

On the question of displacement, the issue was largely framed by a single case – 202 Franklin Street. HPD Commissioner Shaun Donovan promised to look into whether the Department could use emergency funds to effect repairs to the building (and at Bloomberg’s prompting, promised an answer tomorrow).

The G train is not a city issue, so it was easy for Bloomberg to make promises there. He promised to call MTA Director Elliot Sander tomorrow (though he conceded he might not get through until next Tuesday), and to raise the issue with Governor Spitzer, also tomorrow.

That’s as far as NBDC got on its agenda, and that’s when the, ahem, more passionate and vocal members of the community felt compelled to speak out. Bloomberg did stay on for a lightning round of questions from NBDC, in which we learned that Parks has allocated $200 million for capital projects in north Brooklyn and an additional $100 million to acquire parks property at the Bushwick inlet site (a contentious issue, as some of that property is owned by the non-profit Monitor Museum).

And, I finally got to meet Miss Heather. I’m sure she has a slightly less wonkish take on the evening’s festivities.

1. Bloomberg showed his mettle as a manager, constantly asking for goals or deadlines. Commissioners were put on the spot and asked to meet specific deadlines in getting back to questioners, meeting certain goals, etc. And the Mayor himself promised to follow up on some items personally. Schtick or not (and I get the impression that this is really how he works), it was effective and impressive.↩

The Mayor is coming to Greenpoint to talk about Greenpoint. As we said earlier, this is an opportunity not to be squandered. We will have the Mayor for a very brief amount of time – probably an hour or so – so this is no time for soap boxes, breast beating, grandstanding and hyperbole.

Get to the point.

Stay on message.

And the message should be this: the city needs to do a better job of managing change.

There are going to be a host of issues thrown at the Mayor. If there is one theme that ties most of these issues together, I think it is this: we need to do a better job of managing change and growth in Greenpoint. The rezoning and redevelopment of Greenpoint have brought tremendous changes, and no one wants to stop this process or turn back the clock. At the same time, the community needs help managing this growth and we are not always getting that from city agencies. Issues of construction safety, zoning, transportation, parks and open space, the environment, housing and industry – all of these are brought on by, or made worse by, the incredible pace of change we are undergoing in this neighborhood. If the rezoning and redevelopment of Greenpoint is going to be a success (and we should certainly want it to be) the city needs to step up and work with the community to manage change.